In October, Johnson & Johnson (J&J) revealed a government laboratory test had found asbestos in its own Baby Powder. Since then, the company has continually attacked the validity of the result. J&J announced that other labs conducting similar tests found no asbestos in any samples from the bottle tested by the U.S. Food and Drug Administration or from the same baby powder production lot itself. In challenging the FDA’s finding, however, J&J is also making efforts to discredit the findings of one of its own experts.
Plaintiff Mass Tort Cases Rising
Andreas Saldivar is the laboratory director of AMA Analytical Services, a private Maryland lab that originally found asbestos in Baby Powder under a contract with the FDA. Saldivar is also a paid expert witness for J&J. Since 2017, Saldivar served as a litigation expert in J&J’s defense on several occasions against plaintiff mass tort claims that asbestos in talc caused their cancers. The company now faces lawsuits from more than 16,000 people alleging that asbestos in its powders caused cancer.
Saldivar said J&J lawyers had retained him in 2017 as a company expert in “maybe 20 or 30” cases. His firm bills $200 to $350 an hour for his services, he testified. He testified in a May 2018 deposition that testing he did in 2010 for the FDA showed no evidence of asbestos in Johnson’s Baby Powder, helping to bolster the company’s argument that its iconic brand is safe.
Saldivar’s lab began testing cosmetic talc products for the FDA again this year. In September, Saldivar and his team found asbestos in an unmarked sample that the FDA later identified as Johnson’s Baby Powder.
Expert Witness: Double-edged Sword
In a stunning reversal, J&J’s challenge now is to discredit the single test result as erroneous without undermining the reputation and track record of its own expert witness. Essentially, they must attack the findings without harming the reputation of their own expert. Experts are noting that J&J can attempt to demonstrate this situation as a result of false positives that occurred during testing of the bottle rather than incompetence on the part of the lab director.
J&J continues to bolster their position. They are noting that testing done by other laboratories had found no asbestos in the same bottle of baby powder tested by Saldivar for the FDA. Likewise, nothing was found in most of the baby powder recalled as a result of Saldivar’s finding.
In an interview with Reuters, FDA officials stated they stood by the AMA lab and its results. They also said they were not surprised by J&J’s findings because contaminants are not uniformly dispersed throughout talc. In addition, they claimed that different testing methods can yield varying results.
The impact was immediately felt in the courtroom for one of these mass tort cases against J&J. Hours after J&J disclosed the FDA’s asbestos finding on Oct. 18, a plaintiff’s lawyer, Nate Finch took action. Mr. Finch asked an Indianapolis judge to let him tell the jury about it in a trial. The trial involved a 71-year-old woman who alleged that baby powder contributed to her cancer. J&J’s lawyers opposed the request, arguing that the information could prejudice the jury against the company, but the judge granted Finch’s request. Days later, Finch told the judge his client had come to a confidential resolution with J&J.
Furthermore, several juries over the past two years have concluded that baby powder exposures caused cancer. In turn, they have collectively awarded plaintiffs more than $5 billion. Other juries have sided with J&J, and some cases have settled.
World Impact and Attorney Views
The World Health Organization and other health authorities recognize no safe level of exposure to asbestos, a known carcinogen. Most people exposed to asbestos may never develop any medical complications. However, small amounts can still trigger cancer in some people years later. For medical professionals, there are no known safe levels of asbestos. In turn, the FDA is asking manufacturers to voluntarily recall their products. Products facing recall must show fibers consistent with asbestos as part of any findings.
However, Edward Ulloas, a Los Angeles-based product liability lawyer who does not represent J&J, has noted the difficulty in proving causation. The impact on pending cases could be a limiting factor. Asbestos-related cancers take decades to develop. The FDA’s new finding “would be difficult to tie” to cancers allegedly caused by long-ago exposures, said Edward Ulloa.
It is important, therefore, for plaintiff attorneys who are seeking to pursue cases against J&J to use the best resources for finding expert witnesses who can support their litigation efforts.